Decided on July 12,1994

Md. Mukibar Rahman Appellant
Islam Ali Respondents


A.K.PATNAIK, J. - (1.)THESE two appeals are directed against the judgment and award dated 20.7.1992 of the learned Member, Motor Accidents Claims Tribunal, Kamrup, Guwahati, in M.A.C. Case No. 17(K) of 1975.
(2.)THE facts of the case are that one Md. Nazimuddin was a driver of bus No. ASK 9622. On 8.8.1975 when the said vehicle was stationary at Uttarkuchi bus stop and he was doing some mechanical work under the said vehicle, bus No. ASK 3905, while being backed, ran over him and he succumbed to injuries. As compensation for his death, a claim petition was filed by Hakimi Bibi, his wife, claiming an amount of Rs. 1,00,000/-. But during the pendency of the said claim case Hakimi Bibi die and was substituted by one Md. Faizur Rahman being the legal guardian of Monowara Begum, minor child of the deceased Nazimuddin. The claim petition was initially dismissed by a judgment delivered in the year 1983, but on an appeal being preferred against the said judgment before this Court, by judgment dated 22.1.1989 in M.A.(F) 81 of 1983 this Court remanded the matter for fresh disposal on the basis of the evidence on record and in the light of the observation made in the judgment.
Pursuant to the said judgment of this Court, the Tribunal heard the matter afresh and ultimately awarded a compensation of Rs. 72,000/- only with interest at the rate of 12 per cent per annum from the date of filing of the case till realisation of award and further directed that since the handyman of the offending vehicle. Anil Das and not the driver drove the vehicle causing the accident, 50 per cent of the aforesaid award was to be recovered from the owner of the vehicle, Md. Mukibar Rahman and the balance 50 per cent was to be recovered from the New India Assurance Co.Ltd., the insurer of the vehicle.

(3.)AGGRIEVED by the said award and judgment dated 20.7.1992 of the Tribunal, the owner, Md. Mukibar Rahman, has filed M.A. (F) 7 of 1990 contending that the evidence on record would show that it was the driver of the vehicle ASK 3905, Bishnu Mahanta, who drove the vehicle when the accident was caused and that the finding of the Tribunal that the handyman, Anil Das, drove the vehicle was not justified on the material on record. Mr. H. Munir, learned Counsel for the appellant, in particular took me through the evidence of Dharani Deka, PW 2, the handyman of the vehicle ASK 9622 who has stated that he saw Bishnu Mahanta driving the vehicle when the accident occurred. Mr. Munir also read out the evidence of Chandra Rajbangshi, PW 3 and Dibbar AH, PW 4, two daily labourers, who have gone to the place of occurrence for drinking tea at a nearby shop and both these witnesses have stated that the offending vehicle was driven by Bishnu Mahanta, the driver. In view of the clear evidence of the aforesaid three witnesses cited not by the owner and not by the claimant, Mr. Munir submitted that the Tribunal should have come to a finding that it was Bishnu Mahanta, the driver, who drove the vehicle and not Anil Das, the handyman. Mr. Munir accordingly submitted that since there was no negligence at all on the part of the owner of the vehicle, the compensation awarded by the Tribunal has to be borne entirely by the insurer and the impugned judgment and award of the Tribunal insofar as it directs that 50 per cent of the compensation awarded shall be recovered from the owner, Mukibar Rahman, is liable to be set aside.

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